Retaliation in Massachusetts

Background

“Under G. L. c. 149, subsection 148A, employees are protected against retaliation by their employers for exercising their rights under the chapter's wages and hours provisions.” (See Bradley v. Quincy Cmty. Action Programs, Inc. (2018) 119 N.E.3d 355.)

“No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” (See Parker v. Enernoc, Inc. (2020) 484 Mass. 128, 133.)

“Under G. L. c. 151B, subsection 4 (4), a plaintiff has engaged in a protected activity if "he has opposed any practices forbidden under this chapter or . . . has filed a complaint, testified or assisted in any proceeding under [G. L. c. 151B, subsection 5], which provides for filing of complaints of discrimination with the Massachusetts Commission Against Discrimination [MCAD].” (See Pardo v. the Gen. Hosp. Corp. (2006) 446 Mass. 1, 19 n.33.)

“It is unlawful under G. L. c. 151B, subsection 4 (4A), [f]or any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter. . . " (See id.)

General Information for Complaints and Motions

“It has long been established that retaliating against employees through negative changes to terms and conditions of employment in response to the exercise of protected rights violates G. L. c. 151B.” (See Brennan v. City of Everett (2022) 180 N.E.3d 1038.)

“An ‘employee’ is defined as any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” (See Edwards v. Commonwealth (2021) 174 N.E.3d 1153, 1161.)

“Prohibited retaliatory actions are those that constitute a change in working conditions that create a material disadvantage in the plaintiff's employment.” (See Brennan v. City of Everett (2022) 180 N.E.3d 1038.)

“An employee bringing a retaliation claim is not complaining of discriminatory treatment as such, but rather of treatment that ‘punish[es]’ her for complaining of or otherwise opposing such discriminatory treatment.” (See Town of Brookline v. Alston (2021) 487 Mass. 278, 294 n.16.)

“Therefore, a claim of retaliation may succeed even if the underlying claim of discrimination fails, provided that in asserting her discrimination claim, the claimant can prove that [she] reasonably and in good faith believed that the [employer] was engaged in wrongful discrimination” (See id.)

Prima Facie Case

“Under Massachusetts law, a retaliation claim requires proof, among other things, that the plaintiff reasonably and in good faith believed that the employer was engaged in wrongful discrimination.” (See Ledoux v. Bristol Cmty. Coll. (2019) 96 Mass. App. Ct. 1108.)

"To make out [a] prima facie case for retaliation under G. L. c. 151B, subsection 4, the plaintiff [must] show that:

1. the plaintiff reasonably and in good faith believed that the employer was engaged in wrongful discrimination;
2. that he acted reasonably in response to that belief; and
3. that there is a causal connection between the protected conduct and an adverse employment action.”

(See Pardo v. the Gen. Hosp. Corp. (2006) 446 Mass. 1, 21.)

“If the plaintiff makes such a showing, a presumption of discrimination arises.” (See Blare v. Husky Injection Molding Sys. Boston, Inc. (1995) 419 Mass. 437, 441.)

Standard of Review and Burdens of Proof

“Under the McDonnell Douglas formulation, [the plaintiff] bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination.” (See Welgoss v. Mass. Dep't of Transp. (2016) 90 Mass. App. Ct. 1113.)

“The employer may rebut this presumption by articulating a legitimate, nondiscriminatory reason for its decision.” (See id.)

“The burden then shifts back to the plaintiff to produce evidence that the employer's articulated reason for its decision is not true but a pretext.” (See id.)

Jury Instructions

“The jury are permitted to infer retaliation from the timing and sequence of events." (See Mole v. University of Mass. (2004) 442 Mass. 582, 592; Pardo v. the Gen. Hosp. Corp. (2006) 446 Mass. 1, 19-20.)

“Such an inference may be drawn if adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer's becoming aware of the employee's protected activity, or [w]here adverse employment actions follow close on the heels of protected activity. . . " (See id.)

“We cautioned that where adverse employment actions or other problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions, taken after the employer acquires such knowledge, are motivated by retaliation.” (See id.)

The Court’s Decisions

It is well settled that retaliation laws “prohibits an employer from tak[ing] any retaliatory action against an employee because the employee has engaged in certain protected activities.” (See Edwards v. Commonwealth (2021) 174 N.E.3d 1153, 1161.)

It is also well settled that “General Laws c. 151B, subsection 4 (4), makes it unlawful for any person ... to discharge, expel or otherwise discriminate against any person because he has . . . filed a complaint, testified or assisted in any proceeding under [G. L. c. 151B, subsection 5], [and] subsection 4 (4A) makes it unlawful for 'any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.” (See Slive & Hanna, Inc. v. Mass. Comm'n Against Discrimination, No. 20-P-290, at *7-8 (Mass. App. Ct. Oct. 19, 2021).)